Someone else used my game title

I have a game that's been in development for several months now, derived from a concept that was born a couple of years ago. An original game title was chosen at that time. I purchased the .net domain and am currently negotiating a price for the .com domain name.

Much to my dismay, I recently saw a game emerge that's using the exact title I had picked for my game years before, and is also in the same game genre as mine . It's not the end of the world but it's a curve ball I'm not sure how to best handle.

Although their game title doesn't indicate any trademark status, do they have legal precedence to use the name because their game is released before mine?

If I go ahead and release my game under its original name, can the two games happily co-exist under the same name? I feel this will cause too much confusion but I have seen some duplication of game titles in the past.

Does ownership of the domain names entitle me to any legal ownership of the game title? If not, what can I do in future to protect/reserve the name I desire.

I want to just bite the bullet and come up with a new name, to reflect the originality of the game, but so much has been planned around the original name that changing it would be like changing your son's name on his 3rd birthday - it just doesn't feel right.

I do NOT hold a LAW degree, and you should talk to someone that has one first before you do anything.

Ok I feel your pain, BUT most likely if you come up with a game that has the same name as another already released. and your game is simular to the other game, then that other company might just take you to court.

Although their game title doesn't indicate any trademark status, do they have legal precedence to use the name because their game is released before mine?

Probably yes.

If I go ahead and release my game under its original name, can the two games happily co-exist under the same name?

Probably not.

Does ownership of the domain names entitle me to any legal ownership of the game title?

Probably not, although I think it would depend on what was hosted on the domain. If you just had the domain parked or had nothing related to your game on it, then I doubt it.

If not, what can I do in future to protect/reserve the name I desire.

If a trademark isn't officially registered, then it goes to the first business that begins using it. What constitutes using a mark is up for debate, but in my opinion a mark would need to be in general public use to qualify.

If you can prove that you were publicly using the mark before the other company began publicly using it, then you might have a case. However, for an indie game the cost of pursuing naming rights would probably not be worthwhile, particularly for an unreleased game.